Opinion
10-19-2016
In the Matter of Rafael FRIMER, respondent, v. Antonina FRIMER, appellant.
Jill M. Zuccardy, New York, NY, for appellant. Litvak Law Firm, P.C., Brooklyn, NY (Igor Litvak of counsel), for respondent.
Jill M. Zuccardy, New York, NY, for appellant.
Litvak Law Firm, P.C., Brooklyn, NY (Igor Litvak of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by Antonina Frimer from an order of protection of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated July 16, 2015. The order of protection, upon a finding that the appellant committed family offenses, made after a hearing, directed the appellant, among other things, to stay away from the petitioner until and including July 17, 2017.
ORDERED that upon the appeal from the order of protection, so much of the finding as found that the appellant committed the family offenses of attempted assault and menacing are vacated; and it is further,
ORDERED that the order of protection is affirmed, without costs or disbursements.
In February 2014, the petitioner commenced this family offense proceeding against his wife, Antonina Frimer (hereinafter the appellant), in the Family Court, Kings County, pursuant to Family Court Act article 8. Upon transfer to the IDV Part of Supreme Court, Kings County, and after a hearing, the Supreme Court found on the record that the appellant committed the family offenses of attempted assault, menacing, and harassment, and issued an order of protection directing the appellant to stay away from the petitioner until and including July 17, 2017, and to observe other stated conditions.
“ ‘In a family offense proceeding, the petitioner has the burden of establishing, by a “fair preponderance of the evidence,” that the charged conduct was committed as alleged in the petition’ ” (Matter of Bah v. Bah, 112 A.D.3d 921, 921–922, 978 N.Y.S.2d 301, quoting Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832 ; see Matter of Masciello v. Masciello, 130 A.D.3d 626, 626, 12 N.Y.S.3d 299 ; Matter of Bessent v. Bessent, 113 A.D.3d 847, 979 N.Y.S.2d 543 ; Matter of Knibbs v. Zeman, 86 A.D.3d 568, 926 N.Y.S.2d 835 ). “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Savas v. Bruen, 139 A.D.3d 737, 738, 31 N.Y.S.3d 149 ; see Matter of Masciello v. Masciello, 130 A.D.3d at 626, 12 N.Y.S.3d 299 ; Matter of Bessent v. Bessent, 113 A.D.3d at 847, 979 N.Y.S.2d 543 ; Matter of Williams v. Maise, 85 A.D.3d 933, 925 N.Y.S.2d 839 ).
Here, according due deference to the credibility determinations of the Supreme Court, a fair preponderance of the evidence adduced at the fact-finding hearing supported a finding that the appellant committed the family offense of harassment in the second degree (see Family Ct. Act § 812[1] ; Penal Law § 240.26[3] ). The evidence demonstrated that the appellant, with the intent to harass, annoy, or alarm the petitioner, engaged in a course of conduct, consisting of threatening to call the police and make false accusations against the petitioner, cursing at the petitioner, shoving the petitioner, and throwing his personal belongings, which alarmed or seriously annoyed the petitioner and served no legitimate purpose (see Matter of Jacobs v. Jacobs, 138 A.D.3d 742, 743, 27 N.Y.S.3d 884 ; Matter of Xin Li v. Ramos, 125 A.D.3d 681, 682, 3 N.Y.S.3d 86 ; Matter of Pochat v. Pochat, 125 A.D.3d 660, 661, 3 N.Y.S.3d 112 ).
The Supreme Court's findings of additional family offenses, however, were not supported. There was insufficient evidence to establish, by a fair preponderance of the evidence, that the appellant committed the family offense of attempted assault in the second degree (see Penal Law § 120.05 [1] ; Penal Law § 110.00 ), as there was no evidence that she intended to cause a serious physical injury to the petitioner (see Penal Law § 10.00 [10] ), or attempted assault in the third degree (see Penal Law § 120.00 [1] ; Penal Law § 110.00 ), as there was no evidence that she intended to cause physical injury to the petitioner (see Penal Law § 10.00[9] ; Matter of Wanji W., 277 A.D.2d 243, 244, 716 N.Y.S.2d 676 ;
Matter of James T., 189 A.D.2d 580, 580, 592 N.Y.S.2d 36 ). Further, the petitioner failed to establish, by a fair preponderance of the evidence, that the appellant committed the family offense of menacing in the second degree, as there was no evidence that she engaged in a “course of conduct” or “ repeatedly committed acts” which placed or attempted to place the petitioner “ in reasonable fear of physical injury, serious physical injury or death” (penal law § 120.14[2] ). SIMILARLY, THE PEtitioner failed to establish, by a fair preponderance of the evidence, that the appellant committed the family offense of menacing in the third degree, as there was no evidence that she intentionally placed or attempted to place him in fear of death, imminent serious physical injury, or physical injury (see Penal Law § 120.15 ). Accordingly, we vacate the findings that the appellant committed the family offenses of “attempted assault” and “menacing” (see Matter of Jordan v. Verni, 139 A.D.3d 1067, 30 N.Y.S.3d 841 ).
Under the circumstances of this case, we find no basis to disturb the order of protection (see Family Ct. Act § 842 ; Matter of Filipowski v. Sullivan–Tirelli, 139 A.D.3d 1063, 30 N.Y.S.3d 825 ; Matter of Pochat v. Pochat, 125 A.D.3d at 662, 3 N.Y.S.3d 112 ; Matter of Hodiantov v. Aronov, 110 A.D.3d 881, 973 N.Y.S.2d 703 ; Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 965 N.Y.S.2d 885 ; Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706 ).
The appellant's contention that the Supreme Court erred in failing to conduct a full dispositional hearing is unpreserved for appellate review, as she was informed that the matter would proceed to disposition by the issuance of a two-year order of protection, failed to request a full hearing, and asked the court instead to issue an order of a shorter duration (see Matter of Thomas J. [Joan D.], 112 A.D.3d 718, 719, 976 N.Y.S.2d 398 ).